IN THE COURT OF APPEALS OF OHIO
TWELFTH APPELLATE DISTRICT
CLERMONT COUNTY
STATE OF OHIO, ex rel. JOHN
BECKER,
Relator,
v.
D. VINCENT FARIS, et al.,
Respondents.

:
:
:
:
:
:
:
:
:

Case No. CA2020-10-0058
On Petition for a Writ of Mandamus

BRIEF OF OHIO ATTORNEY GENERAL DAVE YOST
AS AMICUS CURIAE IN SUPPORT OF D. VINCENT FARIS
DAVE YOST (0056290)
Ohio Attorney General
30 East Broad Street, 17th Floor
Columbus, OH 43215
614-466-8980
866-846-8195 fax
Counsel for Amicus Curiae
Ohio Attorney General Dave Yost

 TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES..................................................................................ii
INTRODUCTION AND STATEMENT OF AMICUS INTEREST .................... 1
STATEMENT OF FACTS .................................................................................... 3
ARGUMENT .........................................................................................................4
CONCLUSION......................................................................................................9
CERTIFICATE OF SERVICE ............................................................................. 11

i

 TABLE OF AUTHORITIES
Cases

Page(s)

State ex rel. Bardwell v. Cuyahoga Cty. Bd. of Comm’rs.,
2009-Ohio-5573 (8th Dist.) ................................................................................9
State ex rel. Bunting v. Steyr,
147 Ohio St. 3d 462, 2016-Ohio-5781 .................................................................6
Linda R. S. v. Richard D.,
410 U.S. 614 (1973) ............................................................................................ 5
Statutes, Rules, and Constitutional Provisions
Ohio Const., art.I, §2 ..............................................................................................8
Ohio Const., art.II, §23 ....................................................................................... 2, 7
Civ. R. 11.................................................................................................................9
R.C. 2935.09 ....................................................................................................... 1, 3
R.C. 2935.10.................................................................................................1, 4, 5, 6

ii

 INTRODUCTION AND STATEMENT OF AMICUS INTEREST
Ohio law empowers citizens to file affidavits in court alleging criminal conduct. See R.C. 2935.09. Depending on the circumstances, the court will either issue
an arrest warrant for the person accused of a felony, or else refer the matter “for
investigation prior to the issuance of warrant.” R.C. 2935.10(A). Here, Ohio State
Representative John Becker, acting in his personal capacity, filed an affidavit alleging
that Governor Mike DeWine violated numerous criminal laws by issuing publichealth orders in response to the COVID-19 pandemic. See Private Citizen Affidavit
(filed Sept. 28, 2020), attached to Pet. as Exhibit 1. The Clermont County Municipal
Court referred the matter to the county prosecutor, D. Vincent Faris, who declined
to investigate further. Representative Becker says that Faris’s non-prosecution decision violated the law: he claims that R.C. 2935.10 required Faris to conduct a more
thorough “investigation” before declining to pursue charges. And so he seeks a writ
of mandamus compelling “an actual and legitimate investigation regarding” the allegations in his Private Citizen Affidavit. Pet.6.
The request for mandamus relief should be rejected. Prosecutor Faris correctly decided not to waste prosecutorial resources investigating Becker’s allegations, both because those allegations are frivolous and because the General

1

 Assembly’s impeachment power is the more appropriate tool for investigating alleged abuses of gubernatorial powers. See Ohio Const., art.II, §23.
The Attorney General is interested in this case because the petitioner, John
Becker, is an elected official, and is using the courts to carry out a political stunt.
Worse, Representative Becker is using his position of influence to encourage others
to follow his lead and file frivolous affidavits and mandamus petitions just like his.
It is important that these efforts fail, visibly. If every citizen engaged in the
conduct urged by Representative Becker, the courts would be choked with these affidavits. Under the reading of the statute urged by the petitioner, law enforcement
would be mandated to run willy-nilly, hither and yon, across the countryside, “investigating” what amount to private, political complaints that are properly resolved at
the ballot box.
Prosecutors and the judiciary exist for the benefit of Ohioans. Both institutions serve the public, often by opening their doors and dedicating their resources to
addressing the real concerns of real people in their darkest hours. It is patently unacceptable for elected officials to waste these resources, and to encourage others to
do the same, all in hopes of scoring political points. The Court should reject the
petition for a writ of mandamus and award sanctions of sufficient seriousness to deter
follow-on suits.

2

 STATEMENT OF FACTS
John Becker represents House District 65 in the Ohio General Assembly.
Becker is a vocal opponent of Governor DeWine’s response to the COVID-19 pandemic, which Becker believes to have been overbearing and insufficiently respectful
to the rights of Ohioans—a view with which many Ohioans are not unsympathetic.
Becker has voiced his opposition in a couple of ways.
First, Becker drafted articles of impeachment against Mike DeWine. The
public can view the draft at “impeachdewine.com,” a website Becker created to promote his cause. See Draft Articles of Impeachment, online at https://impeachdewine
.webs.com/lr_133_0235-5.pdf (last visited Oct. 21, 2020).
Second, when it became clear that the General Assembly saw no basis for impeachment, Becker attempted to take matters into his own hands. Becker filed a
citizen complaint against Governor DeWine in the Clermont Municipal Court. The
complaint alleges that Governor DeWine committed ten crimes, including numerous felonies, through the issuance of public-health orders designed to address the
COVID-19 pandemic. Becker filed his complaint under R.C. 2935.09(D), which
states:

3

 A private citizen having knowledge of the facts who seeks to cause an arrest or prosecution under this section may file an affidavit charging the
offense committed with a reviewing official for the purpose of review to
determine if a complaint should be filed by the prosecuting attorney or
attorney charged by law with the prosecution of offenses in the court or
before the magistrate.
A second statute, R.C. 2935.10(A), details the manner in which such complaints are
to be handled:
Upon the filing of an affidavit or complaint as provided by section 2935.09 of the Revised Code, if it charges the commission of a felony, such judge, clerk, or magistrate, unless he has reason to believe that
it was not filed in good faith, or the claim is not meritorious, shall forthwith issue a warrant for the arrest of the person charged in the affidavit,
and directed to a peace officer; otherwise he shall forthwith refer the matter to the prosecuting attorney or other attorney charged by law with
prosecution for investigation prior to the issuance of warrant.
The Clermont County Municipal Court declined to issue a warrant. Instead, it referred the case to Clermont County Prosecutor D. Vincent Faris. And Faris, understandably, declined to pursue charges.
Becker then filed the mandamus petition at issue here. He asks this Court to
order Prosecutor Faris to conduct a more thorough investigation of the wrongdoing
Becker alleged.
ARGUMENT
Becker’s mandamus petition argues that Faris acted illegally by declining to
investigate allegations that the Governor, by issuing his public-health orders, violated ten criminal laws. The claim fails for a number of reasons. For one thing,
4

 Becker lacks standing to seek this relief—“a citizen lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution.” Linda R. S. v. Richard D., 410 U.S. 614, 619 (1973) (citations omitted). And anyway, based in no small part on the frivolousness of Becker’s
underlying allegations, Becker cannot satisfy any of the three requirements of mandamus relief.
Prosecutor Faris may elaborate on these issues if asked to do so. The Attorney
General is filing this brief to make just two discrete points. First, R.C. 2935.10(A)
leaves prosecutors with discretion to investigate or charge criminal activity referred
to them, as in all other cases. Even assuming that the exercise of that discretion is
subject to judicial review, a prosecutor never abuses his discretion by declining to
pursue charges in response to criminal allegations that may be addressed through the
General Assembly’s impeachment power. Second, this Court should impose sanctions to deter this sort of political stunt from becoming commonplace.
1. Representative Becker’s mandamus petition is predicated on the idea that
prosecutors must conduct a thorough investigation every time criminal allegations
are referred to them under R.C. 2935.10(A). That premise is incorrect.

5

 First, R.C. 2935.10(A) does not require prosecutors to conduct an investigation meeting some undefined degree of thoroughness. This follows from the text,
which says, again:
Upon the filing of an affidavit or complaint as provided by section 2935.09 of the Revised Code, if it charges the commission of a felony, such judge, clerk, or magistrate, unless he has reason to believe that
it was not filed in good faith, or the claim is not meritorious, shall forthwith issue a warrant for the arrest of the person charged in the affidavit,
and directed to a peace officer; otherwise he shall forthwith refer the matter
to the prosecuting attorney or other attorney charged by law with prosecution
for investigation prior to the issuance of warrant.
R.C. 2935.10(A) (emphasis added)
Note that the statute does not require anything of the prosecutor to whom an
allegation is referred. The statute says that the court “shall” refer the matter in
some circumstances “for investigation,” but it imposes no duty whatever on prosecutors. But even if there were such a duty, see State ex rel. Bunting v. Steyr, 147 Ohio
St. 3d 462, 466; 2016-Ohio-5781, ¶¶17–18 (alluding to an “obligation” to investigate), a proper “investigation” often consists of nothing more than reading the complaint and deeming it unworthy of further examination. Imagine, for example, that a
citizen had filed a complaint stating that Governor DeWine, during the last full
moon, turned to a werewolf and held up a liquor store. Or suppose someone alleged
that Governor DeWine, by issuing his public-health orders, committed the crime of
“murder.”

These allegations are facially frivolous, and the only responsible
6

 “investigation” would consist of reading the allegations and ignoring them. The
same logic supports the prosecutorial decision here. Becker alleges that Governor
DeWine violated numerous criminal laws in the exercise of his gubernatorial powers.
The allegations are frivolous on their face, whatever one may think of the Governor’s
policy decisions. It would be a strange proposition that a private citizen could compel
action by a prosecuting attorney when professional law enforcement cannot—and
yet cases presented by law enforcement are declined for prosecution every day.
There are additional reasons a prosecutor might decline to conduct an “investigation” upon reading the complaint. For example, the prosecutor might decide
that another governmental actor or agency is better positioned to investigate the
claims at issue. That basis for declining further investigation decides this case. Even
if Becker’s allegations passed the laugh test, our Constitution already provides a
mechanism for holding executive officers responsible for criminal abuses of authority: under Article II, Section 23, the House may impeach and the Senate may convict. In impeachment proceedings, the General Assembly can bring tremendous resources to bear in deciding whether any wrongdoing occurred—and it can do so in
an open process that the public may observe. In fact, the petitioner, in his role as a
state representative, attempted to invoke this constitutional machinery and was
roundly rejected by his colleagues. He turned to his present theory only after his

7

 impeachment effort was stillborn. Prosecutor Faris correctly declined to waste further time and resources investigating alleged wrongdoing that is better investigated,
if it is to be investigated at all, by the General Assembly. Indeed, Prosecutor Faris
responsibly refused to exercise his investigative authority, and ought to be praised rather than criticized, by reasonably deciding that a county prosecutor ought not be
dragged into Becker’s attempt to accomplish in court what he could not accomplish
legislatively. In sum, not only did Prosecutor Faris act appropriately by declining to
investigate further, it would have been inappropriate to do more.
2. This Court should exercise its inherent equitable authority to issue sanctions.
Ohio’s government “is instituted for” the People’s “equal protection and
benefit.” Ohio Const., art.I, §2. County prosecutors are given the awesome task of
investigating crimes that affect the lives of Ohioans. And the courts are assigned the
equally awesome task of adjudicating disputes—criminal disputes, child-custody disputes, and so much more—that will have enormous consequences for the parties
before them. It is therefore troubling when an elected representative, even one acting in his personal capacity, wastes prosecutorial and judicial resources on a frivolous
political stunt. That is exactly what Becker has done. And he has encouraged others
to follow his example. See The Becker Report – September 2020, online at https://

8

 web.archive.org/web/20201013141032/http://www.beckergop.com/2020/09/
(last visited Oct. 21, 2020).
To ensure others do not heed this call, this Court should set a precedent that
such political stunts will be met with sanctions. This Court, exercising its authority
to sanction “the filing of frivolous … proceedings,” State ex rel. Bardwell v. Cuyahoga
Cty. Bd. of Comm’rs., 2009-Ohio-5573, ¶26 (8th Dist.) (per curiam) (internal quotation marks omitted); see also Civ. R. 11, should order Becker to pay attorney’s fees to
Prosecutor Faris. Alternatively, it should order Becker to spend a day observing
criminal trials in open court, so that he can better understand the gravity of the matters for which prosecutorial and judicial resources must be preserved.
CONCLUSION
It is ironic that those who most readily resort to fascist imagery and namecalling are also quickest to demand that the prosecutor act as stooge for the mob, or
of popular opinion—the tools of the tyrant. The rule of law is a lock on that toolbox.
Our constitutional system is designed to prevent the merely unpopular from being
criminalized. Prosecutor Faris has done his part to uphold that system, and there is
no basis for awarding a writ of mandamus. This Court should deny the petition.

9

 Respectfully submitted,
/s/ Dave Yost
DAVE YOST
Ohio Attorney General
30 East Broad Street, 17th Floor
Columbus, Ohio 43215
614-466-8980
866-846-8195 fax
Counsel for Amicus Curiae
Ohio Attorney General Dave Yost

10

 CERTIFICATE OF SERVICE
I certify that a copy of the foregoing Amicus Brief of the Ohio Attorney General was served by regular U.S. mail this 22nd day of October, 2020, upon the following counsel:
Nicholas R. Owens
Law Office of Nicholas R. Owens
88 Station Drive
Georgetown, OH 45121
(513) 706-2634
nick@nickowenslaw.com

D. Vincent Faris
Clermont County Prosecutor
76 South Riverside Drive, 2nd Floor
Batavia, OH 45103
513-732-7313

/s/ Dave Yost
Dave Yost
Ohio Attorney General